In recent years, the National Labor Relations Board (NLRB) has looked carefully at online employee conversations to determine whether those conversations qualify as protected concerted activity under the National Labor Relations Act. Under the Act, Employees cannot be fired, disciplined or otherwise penalized for taking part in protected concerted activity. We previously discussed NLRB decisions that examined whether social media conversations constituted protected concerted activity here, here, here and here.

This week, the NLRB issued another decision regarding a conversation that occurred on Facebook and the decision went in favor of the employer. In that case, Ian Callaghan and Kenya Moore worked for Richmond District Neighborhood Center in the employer’s Beacon Teen Center in a San Francisco high school. The employer provided after-school activities for teenagers at that location. On July 30, 2012, the two employees were offered rehire at the same Center for the following school year.

A few days later a co-worker gave management a screenshot of a Facebook conversation that happened between Callaghan and Moore. The screenshot revealed that Callaghan and Moore were bragging about engaging in insubordinate conduct and workplace disruption, such as taking field trips with the kids whenever they wanted, doing things without permission, and taking the kids to “hella clubs.” As a result of the posts, Richmond District Neighborhood Center revoked the offers of employment made to Callaghan and Moore for the 2012-2013 school year.

The employees filed an Unfair Labor Practice Charge against the employer. In the Charge, the NLRB’s general counsel argued that the employees were unlawfully discharged for engaging in concerted protected activity on Facebook because they were complaining about working conditions. The matter was first brought before an administrative law judge who dismissed the complaint against Richmond District Neighborhood Center. General counsel then requested review from the Board.

On review, general counsel argued that the employees did not have any history of insubordination and that they did not intend to engage in the insubordination and disruptive behavior they boasted about on Facebook and, therefore, they should not have been fired. The Board disagreed. In doing so, the Board specifically stated that the employees’ comments about insubordination and disruption, although mixed with remarks about management, were outside of the Act. The Board went on to state that Richmond District Neighborhood Center was “not obligated to wait for the employees to follow through on the misconduct they advocated” before terminating their employment.

Bottom Line

First, employers must remember that the NLRA protects all employees engaged in protected activity, not just unionized workers. Second, employers still need to be very careful when addressing employee conversations online. In general, employees’ comments are protected if related to their terms and conditions of employment, meaning they can’t be disciplined for such comments. However, as this case demonstrates, employers may take action when employees go beyond merely complaining about terms and conditions of employment and start bragging about misconduct.